Estate of Edward Wenner - Page 6




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          matter, independent of any deficiency proceeding.  See Fernandez            
          v. Commissioner, 114 T.C. 324 (2000).                                       
               The essence of Ms. Clark’s argument is that she is entitled            
          to raise her entitlement to section 6015 relief as an affirmative           
          defense in a section 6404 action.  Ms. Clark asserts that there             
          is sufficient jurisdictional predicate for this Court to                    
          determine her substantive claim.  Historically we have                      
          characterized a claim for relief from joint liability as an                 
          affirmative defense that must be set forth in the pleadings.  See           
          Butler v. Commissioner, supra at 287-288.                                   
               In Neely v. Commissioner, 115 T.C. 287 (2000), an analogous            
          case, we held that we had jurisdiction to decide an affirmative             
          defense raised by the petitioner in a section 7436 case                     
          (Proceedings for Determination of Employment Status).  Section              
          7436, like section 6404, allows judicial review of a                        
          determination of the respondent.  In that case we reasoned:                 
               The statute of limitations set forth in section 6501                   
               constitutes a defense at bar (i.e., an affirmative                     
               defense) that may be raised by the taxpayer in response                
               to a determination made by the Commissioner.  See Rule                 
               39; Genesis Oil & Gas, Ltd. v. Commissioner, [93 T.C.                  
               562 (1989)] supra at 564.  Once our jurisdiction has                   
               been properly invoked in a case, we require no                         
               additional jurisdiction to render a decision with                      
               respect to such an affirmative defense. See Genesis Oil                
               & Gas, Ltd. v. Commissioner, supra at 564.  Rather,                    
               “When such a defense in bar is properly raised, we must                
               pass upon the merits of the issue after receiving                      
               evidence with respect thereto”. Badger Materials, Inc.                 
               v. Commissioner, [40 T.C. 1061 (1963)] supra at 1063.                  
               Accordingly, we hold that where the parties are                        
               properly before the Court in an action brought under                   
               section 7436, the Court possesses jurisdiction to                      
               address issues relating to the period of limitations                   





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